Delhi

West Delhi

CC/18/423

RAJ KUMAR - Complainant(s)

Versus

SPARSH AUTOTECH - Opp.Party(s)

25 May 2023

ORDER

BEFORE THE CONSUMER DISPUTE REDRESSAL FORUM,

WEST DISTRICT, JANAKPURI,

NEW DELHI

 

CC No.   423/2018

In re:-

 

Rajkumar

s/o. Shri Ram Charan Sharma,

R/o. H.No. 27,

West Kamal Vihar,

Karawal Nagar,Delhi-110094                                              Complainant                                                 

Versus

2. Sparsh Autotech Pvt. Ltd.

C/o Plot No. 16A, Najafgarh Road,

Moti Nagar,

Shivaji Marg, Delhi-110026

 

Nissan Motor India Pvt. Ltd.

5th Floor, ASV Ramana Towers

52, Venkatnarayan Road, T. Nagar,

Chennai-600017                                                     Opposite Parties

 

Coram:                                                                             

1. SONICA MEHROTRA (PRESIDENT)
2. RICHA JINDAL (MEMBER)
3. ANIL KOUSHAL (MEMBER)

Date of Institution: 08/10/2018

Judgment reserved on: 17/05/2023

Date of Decision:22/05/2013

 

 

Order by – RICHA JINDAL (Member)

 

 

 

ORDER

 

1. The complainant has filed the present complaint against OPs u/s 12 of the Consumer Protection Act, 1986.Brief facts of the complaint are as follows :

1. The complainant had purchased a second-handvehicle Model Datsun Go, Regn. No. DL1RTA6486, Chasis No. MDHZBAADOG2024836, Engine No. 785971C manufactured by OP No.2 from ShriBaljeet s/o. ShriHukam Chand, R/o. 1-156, Old Roshanpura, Najafgarh, New Delhi-110043 on 5th July 2017 through a sale agreement. The vehicle was financed by the IDBI Bank and the outstanding loan amount was transferred in the complainant.The loan was being repaid through 27 monthly instalments of Rs. 9891/- by the complainant and the RC was due to be transferred tothe complainant's name after the liquidation of the complete outstanding loan amount and the removal of hypothecation.

 

2. The vehicle was purchased as Motor Cab by the complainant as he is a lower-middle-class person and does not have a very sound financial background. The complainant is the only earning person in the family and his earnings depend on the motor cab.

 

3. In April 2018,a problem occurred in the said vehicle, which was taken to the OP No.1 on 03.04.2018. The OP No.1 disclosed that the vehicle engine is seized and will take some time. The vehicle was returned to the complainant on 16.04.2018 saying that the problem has been rectified. The total cost of the repairwas Rs. 53,747/- paid to OP.

 

4. Surprisingly just after six days of repair,the same problem occurred again in the said vehicle and the vehicle was again taken to the OP No.1 on 22.04.2018. The OP No.1 checked and returned the vehicle on the same dayassuring that the problem has been rectified with further assurance that no such problem will occur in future.

 

5. But the defect in the vehicle in question persisted and again the said vehicle was taken to the OP on 27.05.2018 and the same was returned to the complainant on 13.06.2018 after the lapse of seventeen days. Again the same lame assurance was given ignoring the difficulties and frustration faced by the complainant in those days on account of frequent problems in the said vehicle and the loss of money the complainant would have earned those days.

 

6. Again after some days the said vehicle developed a major problem. The vehicle was taken to the Respondent again who again disclosed that the engine got seized. The OP promised that the problem will be rectified as early as possible. The vehicle was handed over to the OP. This time neither any Service Request Form nor any Receipt was given to the Complainant saying these are not necessary every time and the vehicle will be returned to him as soon it is repaired.

 

7. Since then the said vehicle has been lying at the OP's Service Centre and despite several visits by the Complainant, he has received only assurance from the Respondent and no action has been taken to repair the vehicle.

 

8. Since April 2018 due to frequent problems in the vehicle, the Complainant has faced a lot of financial difficulties and since June 2018 the vehicle has been lying with OP No.1. This has caused a loss of earnings of over Rs. 2000/- per day besides the payment of monthly instalment @ Rs. 9891/- to the Bank. This created a burden on the complainant to survive without any earnings for about months besides heavy expenditure on vehicle repair and its EMIs. The problem persisted since the first visit to the OP, but every time some excuses were made by OP No. 1. All this has left the Complainant with almost no Income since then resulting in a loss of over Rs. 1,80,000/- since June 2018 besides the expenditure on repayment of a loan of vehicle Rs. 39,564/- for four months. All this has shattered the life of the Complainant.

 

1. When no response was received by the Complainant despite frequent visits and repeated requests the Complainant wrote a written complaint to the Respondent on 03.08.2018 through speed post but all in vain.

 

10. The Complainant has faced s lot of harassment due to the highly unprofessional behaviour of the Respondent and is also liable for the breach of contract as it has not complied with the team of their service and the vehicle has frequently developed the problem before finally getting its engine seized resulting in the complete breakdown of the vehicle since June 2018 and that caused a loss of about Rs. 2,50,000/- to the Complainant. Hence through this complainant, the complainant prayed for a direction to the Respondent to pay an amount of Rs. 2,50,000/-, (i.e., Rs. 2,00,000/- as compensation for the loss of earnings due to the complete breakdown of the vehicle since June 2018 and repeated requests by the Complainant and Rs. 50,000/- as the amount given to the Respondent as service charges as the Respondent has completely failed to fulfil its promise to the Complainant) together with 18% interest with the cost of litigation.

 

2. Accordingly, on 25/10/2018 after hearing arguments on admission, notice was issued to OPs returnable on 07/01/2019. OP No.2 appeared before the forum on 07/01/2019 and submitted Vakalatnama and sought time for filing the reply to the complaint. The matterwas adjourned to 08/03/2019.

 

3. On 08/03/2019, counsel for the complainant filed a track report aboutthe service of OP No.1. Despite service none appeared on behalf of OP No.1, hence they proceeded exparte. Whereas Op No.2 again sought time for filing a reply. The same was allowed subject to a cost of Rs 500/-.The matter was further adjourned to 13/5/2019 for filing a reply after payment of cost. Finally, OP No.2filed its reply on 16/07/2019, wherein OP No.2 took the following preliminary objections:-

1. The Opposite Party No.2, (hereinafter referred to as Answering Opposite Party) is a Company duly Incorporated under the provisions of the Companies Act and is a renowned manufacturer of various types of vehicles and is widely acclaimed for its class and quality.

 

2. The vehicles manufactured at the plant are also thoroughly inspected for control systems, quality checks and test drives before passing through factory works for dispatch to the authorized dealers appointed on a 'principal to principal' basis for the sale of the cars and vehicles.

 

3. The complaint is not maintainable only on the ground that the Complainant is not a Consumer within the meaning of the Consumer Protection Act, 1986. It is submitted that the Complainant purchased the vehicle from a person namely Baljeet Singh and as such, the Complainant is not a Consumer of the answering Opposite Party and thus, the Complaint is liable to be dismissed against the Opposite Party only on this ground alone.

 

4. The Complaint is liable to be dismissed if no cause of action ever arose in favour of the Complainant and against the Opposite Party.

 

5. The Opposite Party No.2 is in no manner responsible/liable with respect to the present dispute. As Opposite Party No.2 does not have any vital role except for the fact that it is solely a manufacturer of the said vehicle. It is submitted that the vehicle in dispute was taken to Opposite Party No 1 for carrying out the necessary and the Opposite Party No 1 had duly repaired the vehicle. Thus, the instant Complaint is liable to be dismissed against the Opposite Party only on this ground alone.

 

6. That the present Complaint is filed on false and concocted facts and as such the same is liable to be dismissed only on this ground alone.

 

7. The Complainant has filed the present Complaint suppressing the material facts. It is submitted that the vehicle of the Complainant was duly repaired in the month of June 2018 and the same was duly communicated to the Complainant. However, despite several reminders and request the Complainant did not pick up the vehicle. Having no other recourse, a Police Complaint in this regard was registered at Moti Nagar Police Station.

 

8. That the present Complaint is liable to be dismissed as the Complainant has not approached this Forum with clean hands. It is submitted that the Hon'ble Supreme Court in the case of Canara Bank & Ors v Debasis Das & Ors reported in AIR 2003 SCW 1561 has held that "A person who seeks equity must come with clean hand. He, who comes to the Court with false claims, cannot plead equity nor would the Court be justified to exercise equity jurisdiction in his fair. A person who seeks equity must act fairly and equitably." In the present Complaint, the Complainant has wrongly alleged that the vehicle has not been repaired whereas in fact, the vehicle was repaired in June 2018 and despite repeated reminders and requests, the Complainant has not lifted the vehicle, for reasons best known to him.

 

1. From a bare perusal of the present Complaint, it can be reasonably concluded that the Complainant has his grievances only against the Opposite Party No. 1 i.e. the dealer and thus, the Opposite Party No.2 being the manufacturer is nowhere liable and answerable for the alleged grievances of the Complainant. Further, Opposite Party No.2 cannot be vicariously held liable for the actions of the dealership and the relationship exists between the opposite parties on a 'principal to principal' basis.Opposite Party No.2 cannot be held liable for any independent act and/or omission, committed by the dealer. Thus, for the acts of Opposite Party No. 1, Opposite Party No.2 could not be held vicariously liable.

 

10. In this regard, reference may be taken from the case of Indian Oil Corporation vs. Consumer Protection Council, Kerala & Anr. (1994) 1, Supreme Court Cases 397, whereby the Hon'ble Supreme Court observed that "reliance has to be placed on the circumstances, documents and conduct of parties to prove that the relationship of the parties is of 'principal and agent' or of one of 'principal to principal' basis. In the instant case based on the facts of the case, it was held that the relationship of the parties is on a 'principal to principal' basis. That similar view has been observed in various judgments held by National Commission and State Commissions as below:

 

• Hon’ble National Consumer Disputes Redressal Commission, in National Insurance Company Ltd. through its Manager vs. Babulal Lodhi, 2010(3) C.P.C. 717 upheld the order of the State Commission passed regards the liability of the manufacturer. The manufacturer's plea before the State Commission was that their contract with the dealer was on a principal-to-principal basis and they had no privity of contract with the complainant. According to the facts of the present case, any defect noticed in a cylinder supplied by them to the dealer must be verified and tested before acceptance and the defective cylinders must be returned to the manufacturer. The State Commission held that the manufacturer was not liable.

 

• Hon’ble National Consumer Disputes Redressal Commission in Hindustan Petroleum Corporation Limited vs. PSNR Companies, 2010 (1)C.P.C. 576 allowed the petition and stated that the liability of the dealer stood established, but the manufacturer is absolved from any liability, leaving the dealer to satisfy the award, since the manufacturer and dealer have a principal-principal relationship between them.

 

• Hon’ble Maharashtra State Consumer Disputes Redressal Commission, in Thomas Vally vs. Mercedes-Benz India IV (2016) CPJ 84 (Maha.) held that the manufacturer cannot be held vicariously liable for the acts of the dealer, since the relationship between the two of them is on a principal to principal basis.

 

11. The instant complaint is liable to be dismissed under Section 26 of the Consumer Protection Act, with costs for being false, frivolous, vexatious and misconceived. It is submitted that the Complaint has been filed with ulterior motive and malafide intention to cause harassment and prejudice to the answering Opposite Party Company, which is a company of long-standing and high repute and as a ruse to extract money without just cause or valid reason.

 

• The vehicle had developed certain issues initially and the issues were duly resolved by Opposite Party No 1 through Engine repair, Radiator replacement and Gasket replacement. Again the vehicle was repaired in the month of June 2018 and the Complainant was duly informed about the same and was requested to lift the vehicle.However, despite several reminders and request the Complainant did not pick up the vehicle. Having no other recourse, a Police Complaint in this regard was registered at Moti Nagar Police Station.

 

13. The Complainant is not entitled to any relief whatsoever as Opposite Party No.2 have always acted within the purview of law and as per the norms of the Company.

 

3. Thereafter a rejoinder was submitted by the complainant to the reply of OP No.2
4. The complainant also filed evidence by way of an affidavit on 06-12-2019 testifying to all the facts stated in the complaint along with documents exhibit CW-1/1 to CW-1/10 affirming the facts alleged in the complaint. The complainant has filed his evidence as CW1/PW1 by way of his affidavit and he has proved the following documents.:

1. Copy of the vehicle sale agreement dated 5th July 2017,
2. Copy of R.C. No. DL 1 RTA 6486,
3. Copy of Invoice dated 25th April 2016
4. The Copy of the Service Request Form issued by the OP
5. The Copy of Receipt No. SAT/WS/MN-374 dt. 16.04.2018 issued by the OP against the receipt of payment.
6. The Tax Invoice No. SINCDL3A19000177 dated 22.04.2018
7. The Tax Invoice No. SINCDL3A19000665 dated 13.06.2018 
8. The copy of the Insurance Policy
9. The copy of the letter written by the complainant to OP regarding the status of the vehicle and speed post receipt.

 

5. Thereafter OP No.1 filed an Affidavit by way of evidence on the same daytestifying to all the facts stated in the written statement.

 

6. Thereafter both parties filed written arguments.The matter was adjourned several times for final arguments.

 

7. Finally, oral arguments were heard on 7-04-2023. We have carefully gone through the record of the case and have heard the submissions of the complainant.

 

8. After going through the material placed on record, it reveals that the first objection raised by the OP in the present complaint is whether the Complainant is a consumer and hence covered under the definition of the consumer as per the Consumer Protection Act,1986.

 

9. The main issue involved in this Complaint is whether the Complainant comes within the definition of a 'consumer' as defined under Section (2)(1) (d) of the Consumer Protection Act, 1986 (for short, 'Act'). To answer the aforesaid vital question.

 

10. It would be pertinent to begin our discussion by referring to the definition of the term “consumer” under Section 2(d) of the Consumer Protection Act, 2018:
11. (d) “consumer” means any person who —

 

1.       buy any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person but does not include a person who obtains such goods for resale or any commercial purpose; or
   2.     hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who ¹² [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment when such services are availed of with the approval of the first-mentioned person but do not include a person who avails of such services for any commercial purpose;

 

11. In our opinion, when the Opposite party in their written statement has specifically raised a preliminary objection that the 'Complainant' was not a Consumer as defined under Section 2(1) (d) of the Consumer Protection Act, 1986 then this issue being a maintainability issue should be dealt first.
12. Where a motor vehicle is subject to an agreement of hire purchase, lease or hypothecation, the person in possession of the vehicle under that agreement is treated as the owner.

 

13. Section 2(30) of the Motor Vehicles Act, 1988 indicates that the person in whose name a motor vehicle is registered is the owner and the only two exceptions to that principle are where such a person is a minor or where the subject vehicle is under a hire purchase agreement. The decision of this Court in Purnya Kala Devi (2014) 14 SCC 142, it has been submitted, related to a situation where the offending vehicle had been requisitioned by a state government. Similarly, the decision in (2015)3 SCC 679 dealt with a situation where the vehicle had been financed against a hypothecation agreement. It was in this background that this Court held that the person in possession of the vehicle under a hypothecation agreement was to be treated as the owner. Having Reshma (Supra) and Purnya Kala Devi (supra) regard to the definition contained in Section 2(30),.

 

14. Section 50 casts the onus of changing the name in the registration certificate, on both the transferor as well as the transferee, and hence the transferor (the registered owner) cannot be made liable, and the transferee who has control over the use of the vehicle should be made liable.”

In the earlier Act of 1939, the expression ‘owner’ was defined in Section 2(19) as follows:

“11…2. (19) ‘owner’ means, where the person in possession of a motor vehicle is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase agreement, the person in possession of the vehicle under that agreement.” Evidently, Parliament while enacting the Motor Vehicles Act, of 1988 made a specific change by recasting the earlier definition. Section 2(19) of the earlier Act stipulated that where a person in possession of a motor vehicle is a minor the guardian of the minor would be the owner and where the motor vehicle was subject to a hire purchase agreement, the person in possession of the vehicle under the agreement would be the owner. The Act of 1988 has provided in the first part of Section 2(30) that the owner would be the person in whose name the motor vehicle stands registered. Where such a person is a minor the guardian of the minor would be the owner. In relation to a motor vehicle which is the subject of an agreement of hire purchase, lease or hypothecation, the person in possession of the vehicle under that agreement would be the owner. The latter part of the definition is like an exception which applies where the motor vehicle is the subject of a hire purchase agreement or an agreement of lease or hypothecation.

 

15. Further Hon’ble Supreme Court in the case of Navin Kumar vs. Vijay Kumar and Ors. As reported in I (2018) ACC 549 (SC) Held that

“The consistent thread of reasoning which emerges from the above decisions is that in view of the definition of the expression ‘owner’ in Section 2(30), it is the person in whose name the motor vehicle stands registered who, Mohan Benefit (P) Ltd. v. KachrajiRaymalji, (1997) 9 SCC 103 : 1997 SCC (Cri) 610; Rajasthan SRTC v. Kailash Nath Kothari, (1997) 7 SCC 481 ; National Insurance Co. Ltd. v. Deepa Devi, (2008) 1 SCC 414 : (2008) 1 SCC (Civ) 270 : (2008) 1 SCC (Cri) 209; Mukesh K. Tripathi v. LIC : (2004) 8 SCC 387: 2004 SCC (L&S) 1128, Ramesh Mehta v. Sanwal Chand Singhvi (2004) 5 SCC 409, State of Maharashtra v. Indian Medical Assn. (2002) 1 SCC 589 : 5 SCEC 217, Pandey & Co. Builders (P) Ltd. v. State of Bihar (2007) 1 SCC 467 and placed reliance on Kailash Nath Kothari [Rajasthan SRTC v. Kailash Nath Kothari, (1997) 7 SCC 481, National Insurance Co. Ltd. v. Durdadahya Kumar Samal : (1988) 1 ACC 204 : (1988) 2 TAC 25 (Ori) and Bhavnagar Municipality v. BachubhaiArjanbhai : 1995 SCC OnLineGuj 167 : AIR 1996 Guj 51; Godavari Finance Co. v. DegalaSatyanarayanamma, (2008) 5 SCC 107 : (2008) 2 SCC (Cri) 531; Pushpa v. Shakuntala, (2011) 2 SCC 240 : (2011) 1 SCC (Civ) 399 : (2011) 1 SCC (Cri) 682; T.V. Jose [(2001) 8 SCC 748 : 2002 SCC (Cri) 94] , SCC p. 51, para 10; U.P. SRTC v. Kulsum, (2011) 8 SCC 142 : (2011) 4 SCC (Civ) 66 : (2011) 3 SCC (Cri) 376; Purnya Kala Devi v. State of Assam, (2014) 14 SCC 142 : (2015) 1 SCC (Cri) 304 : (2015) 1 SCC (Civ) 251.” for the purposes of the Act, would be treated as the ‘owner’. However, where a person is a minor, the guardian of the minor would be treated as the owner. Where a motor vehicle is subject to an agreement of hire purchase, lease or hypothecation, the person in possession of the vehicle under that agreement is treated as the owner.

 

16. In the case of SurendraKumarBhilve vs. New India Assurance Co. Ltd. Reported in LAWS (SC) 2020 6 35 (SC)wherein, it is held as under:

"31. In our considered opinion, Sections 19 and 20 of the Sale of Goods Act, of 1930, which deal with the stage at which the property in movable goods passes to the buyer, are of no assistance to the Insurer. There can be no doubt that property in a specific movable property is transferred to the buyer at such time as parties to the contract intend it to be transferred, provided that such immovable property is free to be transferred, and/or in other words capable of being transferred.

32. If there is an impediment to the transfer, as in the instant case, where No Objection of the financier bank was imperative for the transfer of the said truck, there could be no question of transfer of title until the impediment was removed, for otherwise, the contract for transfer would be injurious to the financier bank, immoral, unlawful and void under Section 10 read with Sections 23 and 24 of the Contract Act, 1872.

33. It was thus, an implicit condition of the agreement for the transfer of the said truck, that the transfer would be complete only upon issuance of No Objection" by the financier bank and upon compliance with the statutory requirements for transfer of a motor vehicle. 34. The contract in this case, could not possibly have been an unconditional contract of transfer of movable property in deliverable state, but a contract to transfer, contingent upon No Objection" from ICICI Bank, and compliance with the statutory provisions of the Motor Vehicles Act, 1988 and the Rules framed thereunder. Sections 19 and 20 of the Sale of Goods Act are not attracted. 36. It would also be pertinent to note the difference between the definition of owner in Section 2(30) of the Motor Vehicles Act, 1988 and the definition of owner in Section 2(19) of the Motor Vehicles Act, 1939 which has been repealed and replaced by the Motor Vehicles Act, 1988. Under the old Act owner meant the person in possession of a motor vehicle. The definition has changed. Legislature has consciously changed the definition of owner to mean the person in whose name the motor vehicle stands.”

 

17. We have considered the evidence on record and ratio discussed as above and conclude that the complainant purchased the car in question from MrBaljeet on 05/07/2017 for the consideration of payment of the remaining 27 EMI instalment of Rs. 9,891/-, thus totaling Rs 2,68,872.45 to be paid to the IDBI Bank Ltd through Agreement to sale and said the written agreement between the parties is duly placed on record.

 

18. As the ratio laid down by Hon’ble Supreme Court in the case of Surendra Kumar Bhilve (supra) if, there is an impediment to the transfer, there could be no question of transfer of title until the impediment was removed for otherwise the contract for transfer was would be injurious to the financer, immoral and unlawful and void under section 10, 23 and 24 of the Contract Act, If registration continues to remain in the name of the owner.

 

19. Considering the contents of the complaint, documentary evidence on record, and arguments advanced by the ld. Advocate for the parties, the ratio laid down in the above-referred judgments, we are of the view that the complainant has made out his case and squarely covered under the definition of the consumer as per CPA Act,1986

 

20. However, another aspect for consideration is whether the vehicle purchased by the so-called complainant is defective or not.

 

21. The argument raised by the complainant on this point is that the complainant had purchased a second-hand vehicle from Baljeet on 05-07-2017 which was delivered to the Complainant on the same day.Complainant argued that the vehicle started giving troubles just after a few days of its purchase. In April 2018, a problem occurred in the said vehicle, which was taken to the OP on 03.04.2018. The OP disclosed that the vehicle engine is seized and will take some time. The vehicle was returned to the complainant on 16.04.2018 saying that the problem has been rectified. The total cost of the repair was Rs. 53,747/- paid to OP. this fact can be verified from the tax invoice issued by OP which verified this fact the engine got seized only after the vehicle run for only 22355 km.

 

22. When the whole vehicle developed defects right from the date of purchase, these defects must have come from the manufacturing stage and changing individual parts would not solve the problem and that is why it gave continuous problems in running.

 

23. In order to prove the deficiencies of the car the complainant placed on various job card issued by OP No.1 with in a span of two months of purchase. Most importantly the job card dated 03.4.2018 shows that the extensive repair workwas taken up and Engine repair, Radiator replacement and Gasket replacement was done. Thereafter the vehicle was sent to the OP No. service station again on 22/04/2018 within the span of 15 days only. Admittedly an engine seizes up due to mechanical failure, usually associated with oil starvation. When an engine runs out of oil or the oil isn’t circulating as it should, internal metal parts rub against each other, creating enormous amounts of heat from the friction.

 

24. Further in Hyundai Motors India Ltd. Vs. Affiliated East West Press Ltd., I (2008) CPJ 19, (NC),wherein it has been observed:- "Consumer Protection Act, 1986- Sections 2(1)(f),2(1)(g), 14(1)(c), 14(1)(d)- In our opinion, from the admission made by the Petitioner it is clear that the vehicle had gone to them on several occasions for repairs. In our view, there is no necessity for a new car to go to work shop on several occasions for repairs within a short span of one year of its purchase.As stated above, with such a vehicle the consumer would not be satisfied. Maybe that such defects may occur in one out of thousand vehicles but, at the same time, it is the duty of the reputed/established manufacturer to replace such a vehicle. We cannot lose sight of the fact that vehicles which emit smoke beyond the specified levels, are not allowed to ply on the roads.It is also contended that the car was used by the Complainant for more than one year and, therefore, appropriate deduction in the amount payable to the Complainant be made. In our view, this submission cannot be accepted because the Complainant has also invested money for purchase of the said car and on the same amount he has lost interest. The car was required to be used after its repeated repairs. In such a case, it was the duty of the Petitioner to replace the car as they were not in a position to rectify the defect. Hence, there is no question of deducting any amount in the present case.”
25. The complainant also in support of his contention that for these defects the vehicle is required to be replaced with a new vehicle, cited the judgment in the case of Bajaj Auto Ltd. &Ors. Vs. Anurag Kapoor, I (2003) CPJ 203 (NC).

 

26. We have gone through the pleadings filed on recordand the oral arguments advanced by rival parties. It is an admittedfacton record that the vehicle of the complainant gave repeatedengineissues and therefore, thrice on 3.4.2018, 22.04.2018 and 27.05.2018the vehicle visited service center of OPs.  The stand of OP.2throughout in the written statement has been that there was anissue of engine as engine got seized. Admittedly despite service OP.1 did not appear before the commission to put his case, therefore adverse inference will be drawn against OP No.1. complainant further contended that the car was againsent to the OP service station again in the month of June 2018 for the same issueand thereafter the vehicle was remain within the custody of OP, but this time job card was not issued by OP no.1. however this fact was duly confirmed by OP no.2 in their reply, wherein OP No.2 categorically admitted that the vehicle had developed certain issues initially and the issues were duly resolved by Opposite Party No 1 through Engine repair, Radiator replacement and Gasket replacement, Again the vehicle was repaired in the month of June 2018 and the Complainant was duly informed about the same and was requested to lift the vehicle. It is very strange that the engine got seized twice within span of two months only. Although OP no.2 in their reply categorically stated that the vehicle was repaired and it was the complainant, who did not took the possession of the vehicle in question but he failed to file any document in this regard.

 

27. In support of the plea of the complainant for either replacement of the vehicle or refund of the purchase price of the car on the ground of inherent manufacturing defect in the vehicle, counsel for the complainant relied on the  verdict of Hon’ble National Commission in the case of Ford India Private Limited vs. Michael Edinburg & Anr,(First Appeal No.158/2016) decided on 14.03.2016,  2016 Legal Eagle 1159 wherein it was held as under:

“In order to establish “defect” in any goods, it has to be provedthat (a) there is a fault, imperfection or shortcoming, (b) such fault, imperfection etc. is in the quality, standard etc., (c) which is required to be maintained by or under any law for the time being in force or (d) which is claimed by the trader in any manner whatsoever about any goods.  As noted above, the vehicle in question is manufactured by an internationally renowned company with the brand name “FORD”.  A person purchasing a vehicle of the said brand takes it for granted that the quality and standard of the vehicle would beworld-class and hassle-free.  The unusual soundwhile shifting the gears, for which during the period from June 2001 to February 2002 the vehicle had to betaken to the workshop of the dealer four times, unusual soundof engine vibration, the problem of silencer noise and unusual sound while shifting the gears on 24.7.2001 and the resultant replacementof silencer and axle; complaint of sound while shifting the gears and noisefrom suspension on 27.09.2001, due to whichthe axle wasagain replaced, the need to replace the LH  axle and other parts by the dealer on 13.02.2002 etc, in our opinion is more than sufficienttodemonstrate that the vehiclehad some fault, which was brought to the notice of the dealer within four months of the purchase of the vehicle and was admittedly repaired, though during the warranty period.  The bare fact that a brand new car needsto be takento the workshop several times, is per se demonstrativeof the fact thatthere was a shortcoming in the car; it was imperfect and much below the expected quality and standardof the vehicle manufactured by “FORD”.  We say no moreexcept to notethe contrast in the pre-sale and post-sale behaviourand attitude of the manufacturers in this countryand other countries, where the kind of harassmentthe complainant has undergone at the hands of the manufacturer and dealer, would have attracted a huge amount of damages.  Perhaps one of the factors, which emboldens the manufacturers not to accept the defects and encourage litigation on one or another pretext is the delay in the disposal of complaints and the reliefs being granted in favour of the successful complainants.  In view of the above, in our view, the State Commission has rightly concluded that the subject vehicle has manufacturing defects.”

 

28. Reliance is placed upon Hon’ble NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI in REVISION PETITION NO. 2319 OF 2015 titled M/S. SATYAM AUTOMOBILES PVT. LTD.  Versus MUKESH SINGH & ANR. held that

“It is an admitted fact, that vehicle was taken number of times to the workshop of petitioner for repairs. In the grounds of appeal, petitioner itself admits that;"petitioner had replaced the engine and other parts as and when the respondent no.1 complained for the same."

Therefore, the above fact goes on to show, that engine of vehicle has been replaced within a short period of one year from the date of purchase. Thus, there has been inherent defects in the vehicle, otherwise there was no occasion for replacing the engine. In addition, petitioner has paid a sum of Rs.11,600/- to respondent no.1. Though it is the case of petitioner, that same was paid as a gesture of goodwill, but the fact remain that the aforesaid amount has been paid to respondent no.1 since there were defects in the vehicle. Otherwise, there was no occasion for the petitioner to pay a sum of Rs.11,600/- to respondent no.1, even during the warranty period.

This plea of petitioner that no expert was appointed in this case, is not sustainable in view of the admission made by petitioner itself that engine of the vehicle has been replaced. Thus, it is a case of "Res ipsa loquitur", which means that facts speak for itself. Replacement of engine of the vehicle on 17.04.2011, by petitioner itself goes on to show that vehicle has inherent defects and that is, why it required replacement of the engine within one year of its sale.”

<>29.30.“while re-examining the present Revision Petition it is apparent that the Ld. Counsel contends and argues that the conclusion arrived at by the Foras about the manufacturing defect is incorrect and wrong. This Commission has discussed above that it can only interfere with the findings of the Fora below if the findings are perverse or there is a wrong exercise of jurisdiction. The findings can be said to be perverse when it is based on no evidence and when the material evidence has not been considered. In the present case while concluding that there was a manufacturing defect in the vehicle the Foras below have relied on cogent evidence of the nature that the vehicle had to be taken repeatedly for services on several occasions immediately after purchase for the rectification of defects, which the Respondent No. 2 the Authorized Dealer had failed to rectify. The Petitioner/Manufacturer contended that there was no manufacturing defect yet it did not produce any expert opinion to prove that there was no manufacturing defect in the vehicle, although the law permits either of the parties to obtain an expert opinion. There was sufficient evidence before the District Forum to conclude that the vehicle was having manufacturing defect and so the District Forum did not feel any necessity to call on its own the expert opinion.”

 

31. In the case of TATA MOTORS LTD VS MANOJ GAI & ANR (2009) CPJ 417 Hon’ble court had directed to replace defective vehicle-compensation and cost awarded, one consumer proves from job cards that vehicle is taken on a number of occasions for removing the defects.  Moreover, the National Commission in the case of BHOPAL MOTORS PVT LTD VS SUDAN SINGH & ANR (2008) CPJ 174 (NC) held that Dealer cannot escape from liability in respect of manufacturing defect-Dealer liable either to replace a vehicle in question or pay its price with interest –compensation cost awarded.

 

32. In Tata Motors Limited. Vs. Lachia Setty I (2008) CPJ 151 (NC), wherein the opposite parties could not rectify the manufacturing defects despite repeated complaints and taking the vehicle to the workshop, this Commission held that deficiency in service stood proved.

 

33. In another case reported as “Nachiket P. Shrigaonkar Vs. Pandit Automotive Ltd. & Anr. [II(2008) CPJ 308 (NC)]”, it has been held that if the vehicle is having any manufacturing defect, there is no need to refer the vehicle to the third party.

 

34. In A.M.Dinesh kumar Vs. Hindustan Motors Ltd. &Ors III (1995) CPJ 398 Hon’ble National Commission directed replacement of the vehicle on finding various defects in the vehicle.

 

35. In Hyundai Motors India Ltd. Vs. Affiliated East West Press (Press (P) Ltd. through its Managing Director, Mr. Sunny Malik, I(2008) CPJ19(NC).  It has been held that:-

“The question which arises for consideration in this case is if a luxury car, namely, Accent Car CRD Diesel Model, gives trouble within one or two months of its purchase, would the consumer be satisfied with such a car? Whether the multi-national company manufacturing such a car, is justified in not replacing the car or refunding purchase price and instead engaging in protracted litigation?”

In our view, if a brand new car gives trouble within a few days of its purchase, the consumer would be dissatisfied. Further, in such cases, the manufacturing Company is not justified in protracting litigation, merely because it has the money power.”

36. In Nissan Motors vs Giriraj Kishore Kumar Bansal  reported in 2016 (4) CPR 206, Hon’ble NCDRC held that “Basic facts are not denied that the vehicle was purchased by the complainant/respondent and the vehicle gave trouble starting from initial months of its purchase.  The vehicle has gone to workshop four times in a span of less than one year for repairs.  Though, perusal of the job cards indicated only change of certain items like fuel filter, air filter and oil filter etc., yet the engine was offered for replacement by the opposite parties.  The vehicle remained with the workshop once for 10 days and next time for about three weeks.  Though, the copy of the job card is given to the owner of the vehicle, the fact remains that the job cards are documents of the repairer workshop and are generated there.  There is some force in the argument of the complainant that if only air filter, fuel filter or oil filter was to be changed, the dealer should not have taken so much time in repairing the vehicle.  Moreover, the opposite parties have agreed to change the existing engine with a new engine and it cannot happen until they were convinced that there was some defect in the engine.  Though, it has been claimed by them that it was offered as a gesture of goodwill, even the letter dated 16.01.2008 offering replacement of the engine mentions a reference of the complaint regarding engine oil leakage from the vehicle, which has been admittedly rectified by opposite party No.2.  All these facts go only to confirm that there was some problem in the engine of the vehicle though it is not clearly mentioned in the job cards. Even otherwise, frequent replacement of oil filter, air filter and fuel filter seems abnormal at least for a brand new vehicle.  This also goes to confirm the defect in the engine.”

 

37. In our opinion, the testimony of complainant has gone unrebutted and unchallenged especially against OP No.1. The complainant has proved on record the relevant documents in support of its case. There is nothing on record to disbelieve the sworn testimony of the Complainant or the claim of the complainant. Apart from this, the admission made by the OP No.2 in their reply, it is clear that the vehicle had gone to them on several occasions for repairs. In our view, there is no necessity for a new car to go to work shop on several occasions for repairs within a short span of its purchase.The complaint of the complainant is within the time limit since the complainant vide its letter dated 6.07.2018 had made the complaint with regard to the status of defects in the said car in question and also informed that the OP did not provide service for removal of defects.Therefore, considering the totality of the facts and circumstances and because of the unchallenged, uncontroverted and unrebutted testimony of Complainant especially against OP No.1 and the documents proved on record. In view of the same, it cannot be said that the complainant does not fall within the definition of the term consumer, as envisaged under Section 2(1)(d) of the Act. Complainant is entitled to refund of cost of car paid by him;

 

38. As stated above, with such a vehicle the consumer would not be satisfied. Maybe that such defects may occur in one out of thousand vehicles but, at the same time, it is the duty of the reputed/established manufacturer to replace such a vehicle. We cannot lose sight of the fact that vehicles which emit smoke beyond the specified levels, are not allowed to ply on the roads.

 

39. Based on the foregoing observations of the Hon’ble National Commission, we hold that the complainant is a consumer and has rightly raised a consumer dispute and further, thecomplainant has been able to establish on record that the vehicle in question had inherent manufacturing defect which was beyond repair. The complainant has also been able to prove the privity of the contract between him and OP.1 the manufacturer of the car based on the manufacturing defect proved on record.  The complainant has been able to prove not only deficiency but unfair trade practice on the part of OPs, who despite knowing fully wellthat the As per the own assertion of OP.1, though the relation of OP.1 and OP.2 is on a principal to principal basis in case of a manufacturing defect in the car, the liability of the dealer and manufacturer is co-extensive qua the consumer/complainant herein. OP.2 has in its pleadings submitted that whatever action is taken by OP.1, it will abide by that, therefore, we hold both OPs 1 and 2 liable for deficiency in service and unfair trade practice followed in dealing with the case of the complainant.  The complaint is accordingly allowed.

 

40. Therefore, in the interest of justice, it is directed that the opposite parties shall be liable jointly and severally to refund the claim amount after deducting the depreciated value of the vehicle @20%. Since, the complaint was filed after one year from the date of purchase of vehicle and the vehicle in question was 2 yrs old at the time of filing of complaint. hence the OPs are jointly and severally liable to pay the claim amount i.e. Rs. 2,14,9400/- i.e. after deducting Rs. 53,600/- out of Rs. 2,68,000/- which is admittedly the purchase value of the car, the OPs are liable either to replace the vehicle or to pay its costs alongwith interest @ 7% from the date of filing of complaint till realization.

 

41. Keeping in view the foregoing discussion we direct OPs to pay a sum of Rs.2,41,985/- along with interest @7% towards claim amount along with Rs. 50,000/- to be paid by OPs to the complainant jointly and severally for the harassment, mental agony, loss of time, Rs. 25,000/- for litigation charges.

 

42. Let the order be complied with by OPs within 30 days from the date of receipt of a copy of this order.

 

43. A certify copy of the order may be given to all parties after receiving the application for obtaining certify copy as per the direction received from Hon’ble State Commission. Order be sent to www.confonet.nic.in.

 

44. File be consigned to record room.

 

45. Announced on 22/05/2023. 

 

 

(Richa Jindal)         Member

(Anil Kumar Koushal)               Member

(Sonica Mehrotra)                         President